Sunday, February 4, 2018

From Politics to Policy: Turning the corner on sexual harassment

The ongoing public conversation about sexual harassment has led to a torrent of stories about individual experiences, regressive workplace cultures, and the robust reforms needed to help shift the balance of power between perpetrators and their targets. The #MeToo movement has moved from word of mouth to social media and across the world to build on a campaign launched more than a decade ago by activist Tarana Burke and to create solidarity among survivors of sexual harassment. The movement has catapulted the discussion about the persistence and prevalence of workplace sexual harassment into the headlines: Incidents involving prominent, high-profile figures in entertainment, the media, and politics have dominated the airwaves and spurred calls for decisive action.
For the current movement to be most effective, however, it is critical that policymakers ensure any responsive measures reflect a comprehensive understanding of the breadth and depth of the problem for all workers. Research shows that sexual harassment pervades all industries and occupations, particularly those with a high percentage of low-wage workers—the majority of whom are women. While accusations against high-profile public figures are likely to attract the most attention, regular workers’ stories often go unacknowledged. Yet to ensure meaningful change, these workers’ experiences must be at the center of any policy solutions that lawmakers pursue.

Here are eight concrete actions that federal policymakers can take to achieve progress for all workers who face sexual harassment—especially those who live on the economic margins.

1. Removing barriers to employment

As a condition of employment, some job applicants are asked or required to sign agreements that bind them to take any subsequent disputes—including sexual harassment claims—to arbitration. This means that they may be limited in the legal remedies they can pursue to combat harassment. Other new hires may be required to sign nondisclosure agreements that limit their ability to speak publicly about their place of employment, which may effectively discourage or inhibit sexual harassment victims from coming forward.

These types of pre-employment barriers undermine workers’ ability to utilize important anti-discrimination protections and enforcement tools—including access to trained investigators—that are essential to surfacing, investigating, and remedying sexual harassment. Policymakers should pass legislation that prohibits these types of agreements so that applicants are not constrained in their ability to address workplace harassment.

2. Empowering survivors

The tidal wave of women, as well as some men, coming forward to share their experiences of sexual harassment has occurred in a climate where, for too long, survivors have felt powerless to do anything about their situation. Many have been reluctant to come forward out of fear of retaliation or other adverse consequences. Longstanding stereotypes about women—sometimes fueled by racial and ethnic biases—have created environments in which women are assumed to desire, expected to tolerate, or even believed to be flattered by unwanted sexual advances. These prevailing attitudes have led many women to fear being blamed or criticized for causing the harassment or violence based on how they behaved, what they wore, or how they responded to their harasser. In addition, the oversexualization of women of color can worsen these problems for certain demographic groups.

Exacerbating these workplace dynamics, many harassers have learned how to misuse and leverage power imbalances at work to coerce or manipulate their victims. They have also benefited from structural workplace barriers that make it harder for survivors to come forward. These barriers include, for example, limited managerial oversight; unclear internal mechanisms for reporting claims; ineffective or lax disciplinary measures; and cultures that encourage secrecy or indifference to serious problems.

One critical priority for policymakers must be to put survivors on sturdier ground by shifting the balance of power. Concrete actions toward this end include: establishing anti-secrecy protections to prohibit workplace rules that limit survivors’ ability to discuss a harassment problem and that discourage workers from coming forward; strengthening protections against employer retaliation; and clarifying existing legal protections to ensure that all supervisor-perpetrated harassment is encompassed by the law. Lawmakers should also explore new ways to provide funding to create or expand capacity for workers who encounter sexual harassment to receive much-needed, hands-on, and unbiased advice from trusted sources. Such resources could include sexual harassment hotlines or pilot programs that provide access to worker advocates.

3. Transforming workplaces to create greater accountability

One important aspect of combatting sexual harassment is helping reform and transform workplace cultures. This transformation must start by establishing a basic understanding of sexual harassment not solely as a dispute between individuals, but also as a systemic workplace problem in need of a structural solution. Too often, attention is focused on resolving a particular allegation without more deeply exploring the workplace environment from which the allegation arose.

In order to identify the barriers that can facilitate, shield, or dismiss harassing behavior, policymakers must take a closer look at how many workplaces operate. While employers should take the lead in changing workplace culture, policymakers can take action as well. They could, for example, promote legislation requiring employers to provide new hires with basic information about their sexual harassment policy, internal mechanisms for reporting complaints, and available legal protections. Policymakers could also require employers to report annually to federal enforcement officials a summary of recent settlements related to sexual harassment and any formal findings of discrimination violations, as well as place limits on the awarding of lucrative federal contracts to repeat violators of discrimination laws.

4. Strengthening enforcement of sexual harassment laws

Lost in much of the conversation about sexual harassment has been a focus on the tools needed to ensure that the law is enforced consistently and aggressively. This means having the resources necessary to investigate claims fully and conduct compliance reviews where applicable. It also means improving data collection so that there is better information to assess different rates and trends in claims filings and resolutions by industry, occupation, and other factors.

Federal enforcement agencies such as the Equal Employment Opportunity Commission and the U.S. Department of Labor’s Office of Federal Contract Compliance Programs are essential to ensuring equal employment opportunity. Only by creating a level playing field and ensuring workplaces are free of discrimination can women and people of color have an equal chance to move into decision-making and leadership roles at work. Greater diversity in such roles can help bring different perspectives to the table; increase sensitivity to workers’ diverse experiences; and focus additional attention on the need to combat discriminatory workplace behavior such as sexual harassment.

Improvements that policymakers should pursue include significantly increasing the budgets of enforcement agencies at the federal level to add staff and engage in more robust, proactive enforcement measures, such as technical assistance and education. Additional funding should be targeted toward expanding data collection, data analysis, and research. Policymakers should also target more enforcement dollars toward extensive analysis of systemic barriers and employers’ effectiveness in promoting women and people of color, as well as industry-specific analyses of the prevalence of sexual harassment.

5. Increasing funding for survivor support services

Perpetrators’ dismissal or managers’ attendance at an anti-harassment training session does not negate the impact sexual harassment has on survivors. Eliminating sexual harassment will require a deeper, more nuanced understanding of both the immediate and long-term impacts that harassment has on survivors—and a recognition that the after-effects of harassment can be just as damaging as the harassment itself if left untreated.

Policymakers should provide more funding for supportive services in order to ensure that all survivors in diverse workplace settings have access to the services they need to heal and recover. Such services could include counseling programs and know-your-rights education programs.6. Educating the public about what constitutes sexual harassment

It has become clear through the ongoing public debate that there often is a fundamental misunderstanding of the differences between sexual harassment, sexual assault, and other forms of sexual misconduct. Too often, these terms have been conflated and distorted, leading to confusion and, at times, backlash and resistance. Importantly, there are precise definitions in the law to help distinguish between conduct that is actionable and conduct that is not.

Sexual harassment in employment involves any unwanted sexual or sex-based conduct on the job that is made a term or condition of employment and is used to make an employment decision or to create hostile or intimidating work environment. Not every off-color joke or comment falls within this definition. Rather, the law makes clear that the unwanted conduct must rise to a certain level of severity or frequency before it constitutes a violation of the law. Sexual assault is an umbrella term that is often used to encompass different types of criminal sexual violence, including rape. There is no single definition of sexual assault, but it generally refers to any form of sexual contact made without “explicit consent.” States have adopted specific laws to further define different types of criminal conduct that could constitute sexual assault.

Policymakers should support a robust public education effort to help workers better understand what constitutes sexual harassment, as well as what steps they can take and what help is available to them in different situations. Such support could include, for example, additional funding for federal agencies’ education and outreach programs. Lawmakers could also collaborate with public- and private-sector partners on a national campaign focused on promoting know-your-rights education and on connecting survivors with the services they need.

7. Supporting research on the occurrence of sexual harassment

There is a substantial need for more research—both quantitative and qualitative—about sexual harassment in the workplace. Such research is critical to learning more about where the problem is occurring and why. Better research would also provide more insight into how sexual harassment impacts particular communities—such as women of color, LGBTQ workers, and others. It would also help employers determine how best to ensure that prevention measures recognize and respond to disparities.

Policymakers should provide support through funding and legislation for new research in order to build knowledge about sexual harassment and identify effective solutions.

8. Lifting up state innovation and best practices

It is critical that federal policymakers support innovative strategies to address sexual harassment. States such as California and Oregon have adopted special measures targeting sexual harassment and assault in specific industries. The private sector has also been home to advocate-driven efforts, such as a highly regarded initiative to combat sexual harassment and assault facing female farmworkers.

Federal and state policymakers should work to elevate best practices and provide a platform to hear victims’ experiences and recommendations for progress. Policymakers at the federal level should also set aside special funds for innovation grants in order to incentivize more engagement in identifying policy solutions.

Conclusion

All of the steps discussed above represent pieces of the broader effort to combat sexual harassment. Federal and state policymakers have a critical role to play in pursuing policies that can make a difference for all workers—not just those who grab headlines.

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